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Millsap v. People

United States District Court, E.D. California

February 27, 2018

FERNANDO SINGLETON MILLSAP aka FERNANDEZ SINGLETON MILLSAP aka FREDDY ELLIS, Petitioner,
v.
PEOPLE OF THE STATE OF CALIFORNIA, Respondent.

          FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS

         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In the petition, Petitioner asserts a violation of the Fourth Amendment's prohibition on unreasonable searches. For the reasons discussed herein, the Court recommends denial of the petition for writ of habeas corpus.

         I. BACKGROUND

         On August 22, 2006, Petitioner was convicted of being a felon in possession of a firearm. Petitioner was sentenced to an imprisonment term of twenty-seven years to life. (LD[1] 1). On January 24, 2008, the California Court of Appeal, Fifth Appellate District affirmed the judgment. People v. Millsap, No. F051451, 2008 WL 192331 (Cal.Ct.App. Jan. 24, 2008). The California Supreme Court denied Petitioner's petition for review on April 9, 2008. (LDs 3, 4).

         Thereafter, Petitioner filed multiple post-conviction petitions, which were all denied. (LDs 5-14). Petitioner then filed a federal petition for writ of habeas corpus, which was denied on the merits with prejudice. (LDs 20, 21). On August 1, 2014, Petitioner, with the assistance of counsel, filed a petition for recall of sentence pursuant to Proposition 36 in the Kern County Superior Court, which denied the petition on October 28, 2014. (LDs 15, 16). On November 18, 2014, Petitioner filed a notice of appeal in the California Court of Appeal, Fifth Appellate District, which affirmed the denial of the petition on September 22, 2016. (LD 17); People v. Millsap, No. F070452, 2016 Cal.App. Unpub. LEXIS 7100 (Cal.Ct.App. Sept. 22, 2016). On October 25, 2016, Petitioner filed a petition for review in the California Supreme Court, which denied the petition on November 30, 2016. (LDs 18, 19).

         On June 12, 2017, Petitioner filed the instant federal petition for writ of habeas corpus. (ECF No. 1). Respondent filed a motion to dismiss, which was later withdrawn. (ECF Nos. 18, 22, 26). On November 9, 2017, Respondent filed an answer to the petition. (ECF No. 29).

         II. STATEMENT OF FACTS[2]

         On October 22, 2005, Priscilla Monroy contacted the sheriff's department for a civil standby to keep the peace while she retrieved her belongings from the apartment she shared with defendant. Ms. Monroy was concerned for her safety because defendant kept a rifle at the apartment and had once pointed it at her. Two deputies accompanied Ms. Monroy to defendant's apartment, where defendant sat on the couch while Ms. Monroy collected her things. Ms. Monroy informed the deputies that defendant, who was a convicted felon, kept a rifle under the kitchen sink. One deputy looked in a cabinet under the sink and retrieved an unsecured, sawed-off .22-caliber rifle from behind a cut-out compartment separated by a small half wall.

         A jury subsequently found defendant guilty of being a felon in possession of a firearm and, as defendant had two prior strikes, the trial court sentenced defendant as a third-strike offender to a term of 27 years to life in prison. Following the enactment of Proposition 36, defendant filed a petition for recall of sentence. The trial court denied the petition, finding defendant was armed with the firearm he possessed during the commission of the commitment offense.

         Millsap, 2016 Cal.App. Unpub. LEXIS 7100, at *2-3. ///

         III. STANDARD OF REVIEW

         Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 (2000). The challenged action arises out of the Kern County Superior Court, which is located within the Eastern District of California. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(d).

         On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). The instant petition was filed after the enactment of AEDPA and is therefore governed by its provisions.

         Under AEDPA, relitigation of any claim adjudicated on the merits in state court is barred unless a petitioner can show that the state court's adjudication of his claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts ...

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